DIB GROUP PTY LTD Trading as Hill & Co v COLE [2009] NSWCA 210

DIB GROUP PTY LTD Trading as Hill & Co v COLE [2009] NSWCA 210

The appeal was dismissed because the risk that the pit cover would move was not one of which the respondent was aware or ought reasonably to have been aware, so contributory negligence was not established. Although the employer's duty included an obligation to carry out a site inspection, a reasonable inspection would not have disclosed the unstable pit cover and the appellant failed to prove the factual basis necessary to establish employer liability or a causal connection between any employer breach and the injury.

Jurisdiction
Australia
Judgment Date
24 July 2009
Procedural Posture
Appeal in Negligence Proceedings / Appeal From the District Court of New South Wales
Outcome
Appeal dismissed.
Legal Topics
['apportionment of Responsibility' "employer's Duty to Ensure Safe System of Work" 'danger on Land Not Occupied by Employer' 'contributory Negligence' 'non Delegable Duty' 'causation']
['torts' 'negligence' 'workers Compensation'] ['apportionment of Responsibility' "employer's Duty to Ensure Safe System of Work" 'danger on Land Not Occupied by Employer' 'contributory Negligence' 'non Delegable Duty' 'causation']

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Procedural Posture

Appeal in Negligence Proceedings / Appeal From the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the plaintiff had been contributorily negligent by stepping on the pit cover.' "Whether the plaintiff's employer was also liable in negligence and would, if sued by the plaintiff, have been liable for contribution to the appellant." "Whether an employer's duty in relation to premises controlled by another required a site inspection or warnings about the pit cover." "Whether any breach by the employer had a causal connection with the plaintiff's injury."]

Ratio Decidendi

The appeal was dismissed because the risk that the pit cover would move was not one of which the respondent was aware or ought reasonably to have been aware, so contributory negligence was not established. Although the employer's duty included an obligation to carry out a site inspection, a reasonable inspection would not have disclosed the unstable pit cover and the appellant failed to prove the factual basis necessary to establish employer liability or a causal connection between any employer breach and the injury.

Court Disposition

Appeal dismissed.

Orders

  • ['Dismiss the appeal.' "Order that the appellant pay the respondent's costs of the appeal."]